Citation Nr: 9929728
Decision Date: 10/15/99 Archive Date: 12/06/99
DOCKET NO. 95-02 510 DATE OCT 15, 1999
On appeal from the Department of Veterans Affairs Regional Office
in Waco, Texas
THE ISSUE
Entitlement to an increased rating for bilateral pes planus,
currently evaluated as 10 percent disabling.
REPRESENTATION
Veteran represented by: Clayte Binion III, Attorney at Law
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
C. Lawson, Counsel
ORDER TO VACATE PRIOR DECISION
Factual Background
The veteran served on active duty from July 1942 to December 1945.
Service connection is in effect for bilateral pes planus, which has
been rated as 10 percent disabling since 1951. A claim for an
increased rating was denied by the Board of Veterans' Appeals
(Board) in June 1991. The veteran's current claim for an increased
rating was received in April 1993. Such claim was denied by the
Department of Veterans Affairs (VA) Regional Office (RO) in June
1993. The veteran appealed that decision.
Thereafter, in January 1997, the Board rendered a decision
concerning the claim. That decision was appealed to the United
States Court of Appeals for Veterans Claims (Court) [formerly known
as the United States Court of Veterans Appeals], wherein the
Board's January 1997 decision was vacated and remanded to the Board
in December 1999 for additional development pursuant to a joint
motion for remand.
In essence, the December 1997 joint motion for remand, as approved
by the Court, required the Board "to obtain a thorough medical
examination that fully addresses appellant's bilateral pes planus
condition in the context of the applicable rating criteria." joint
motion, page 3]. The Board remanded this case in June 1998 for such
examination, and for a reasonable opportunity the veteran and/or
his representative to respond [Board remand, pages 4-7].
In the joint motion for remand, the parties agreed that other
claims, namely claims of entitlement to service connection for
right ankle, right knee, left ankle and back disabilities, should
be addressed by the Board. Pursuant to the Court's remand, the
Board in June 1998 noted that those other claims had been raised,
that they were denied by the RO, that an appeal was commenced when
the veteran filed a Notice of Disagreement, that a Statement of the
Case was issued, but that no substantive appeal had been filed and
so those claims were not in appellate status. Furthermore,
2 -
in November 1998, the RO contacted the veteran, who indicated that
he wished to continue his appeal, but only in so far as it
concerned the claim for an increased rating for his pes planus.
An examination was conducted in January 1999 and a Supplemental
Statement of the Case was issued in March 1999. The case was
thereafter returned to the Board. On August 16, 1999, the Board
rendered a decision concerning the matter of entitlement to an
increased rating for bilateral pes planus.
However, after the Boards decision was rendered on August 16, 1999,
it was learned that in connection with the case, a facsimile
transmission (fax) had been received at the Board from the
veteran's attorney. 1 In the fax and materials associated with it,
it was in essence indicated that the attorney had made reasonable
attempts to obtain from the RO a copy of a report of a January 5,
1999 VA examination, prior to a final decision being rendered by
the Board, so that the attorney could have an opportunity to review
such report and to submit evidence and argument in response to it.
The attorney stated that a mix-up and misunderstanding concerning
whether or not he continued to represent the veteran before the RO,
and power of attorney matters, were factors in his not making his
request earlier. The attorney, in the fax, requested a stay of the
adjudication of the claim until such opportunity had been
fulfilled.
Discussion
The Board's decision concerning the matter of an increased rating
for bilateral pes planus on August 16, 1999 was rendered without
knowledge that there was a desire and an outstanding and un-acted
upon request by the representative to review a copy of the January
1999 VA examination report and to submit additional evidence and
argument thereafter.
1 Although the fax transmission was evidently sent on Saturday,
August 14, 1999, the Board was not open on that day. See 38 C.F.R.
20.100(b) (1998). The first day the Board was open thereafter was
Monday, August 16, 1999, the day that the decision was promulgated.
In any event, which day the fax was actually received is not
significant to the conclusion expressed herein.
3 -
The provisions of 38 C.F.R. 20.904 (1998) specifically provide that
the Board may vacate one of its decisions on its own motion when
there has been a denial of due process. Under the circumstances
here present, due process considerations dictate that the Board's
August 16, 1999 decision be vacated. The issue on appeal will be
considered de novo by another member of the Board.
The Board's August 16, 1999 decision is, accordingly, VACATED.
Barry F. Bohan
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. 7252 (West 1991), only a decision of the Board of
Veterans' Appeals is appealable to the United States Court of
Veterans Appeals. This Order to Vacate is in the nature of a
preliminary order and does not constitute a decision of the Board
on the merits of your appeal. 38 C.F.R. 20.1100(b) (1998).
4 -
Citation Nr: 9923035
Decision Date: 08/16/99 Archive Date: 08/26/99
DOCKET NO. 95-02 510 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUE
Entitlement to an increased disability rating for bilateral
pes planus, currently evaluated as 10 percent disabling.
REPRESENTATION
Veteran represented by:Clayte Binion III, Attorney at
Law
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
P.B. Werdal, Counsel
INTRODUCTION
The veteran served on active duty from July 1942 to December
1945.
The veteran has been awarded service connection for bilateral
pes planus, which has been rated as 10 percent disabling
since 1951. A claim for an increased rating was denied by
the Board in June 1991. The veteran's current claim for an
increased rating was received in April 1993. That claim was
denied in June 1993. The veteran appealed that decision, and
has perfected his appeal. He has submitted written argument
and testimony contending that the symptoms and manifestations
of his pes planus represent a disability picture more severe
than that represented by the current 10 percent rating, and
asserts that the disability rating should be increased.
This matter was previously before the Board in January 1997.
At that time, the Board issued a decision denying the claim.
That decision was appealed to the United States Court of
Appeals for Veterans Claims (Court) [formerly known as the
United States Court of Veterans Appeals], where the Board's
January 1997 decision was vacated and remanded in December
1997 for additional development pursuant to a joint motion
for remand.
In essence, the December 1997 joint motion for remand, as
approved by the Court, required the Board "to obtain a
thorough medical examination that fully addresses appellant's
bilateral pes planus condition in the context of the
applicable rating criteria." [joint motion, page 3]. The
Board remanded this case in June 1998 for such examination
[Board remand, pages 4-6]. The requested examination was
conducted in January 1999 and a Supplemental Statement of the
Case was issued in March 1999, as will be described in detail
below.
In the motion for remand, the parties agreed that other
claims, namely claims of entitlement to service connection
for right ankle, right knee, left ankle and back
disabilities, should be addressed by the Board. Pursuant to
the Court's remand, in June 1998 the Board noted that those
other claims had been raised, denied by the RO, that an
appeal was commenced when the veteran filed a Notice of
Disagreement, that a Statement of the Case was issued, but
that no substantive appeal had been filed and so those claims
were not in appellate status. Accordingly, the Board did not
further address those issues.
During the course of additional development following the
Board's June 1998 remand, the veteran indicated that he did
not wish to pursue any VA claim. See Department of Veterans
Affairs (VA) Form 21-4138, Statement in Support of Claim,
dated in October 1998. In November 1998 the RO contacted the
veteran, who indicated that he wished to continue his appeal,
but only to the extent it addressed the claim for an
increased rating for his pes planus. See VA Form 119, Report
of Contact, dated in November 1998. Based on the foregoing,
the Board has concluded that the veteran does not presently
desire to pursue any issue other than the claim regarding an
increased rating for pes planus. Accordingly, that is the
only issue on appeal to the Board at this time.
Similarly, in October 1998, the veteran indicated that he did
not wish to be represented by his attorney. However, in
November 1998 and again in December 1998, the veteran
contacted the RO and stated that he wished to be represented
by his attorney only as to the issue of entitlement to an
increased disability rating for pes planus.
As a final preliminary matter, the Board notes that at a
hearing conducted in March 1997 the veteran testified that he
had been assigned two claim numbers, and suggested that
perhaps pertinent evidence was filed in a different file.
The claims folder for the claim number identified above
contains a letter dated in January 1996 from the Director of
the VA Regional Office in Waco, Texas (the RO), in which it
was explained to an inquiring Congressman that all of the
veteran's records had been consolidated under the claim
number identified above. The Board is satisfied that there
is currently no other claims folder containing information
relative to this veteran that should be associated with the
claims folder currently under review by the Board, and VA's
statutory duty to assist the veteran in the development of
his claim has been met. See 38 U.S.C.A. § 5107(a) (West
1991).
FINDINGS OF FACT
1. The symptoms and manifestations of the veteran's service
connected bilateral second degree pes planus are comparable
with a disability most accurately characterized as moderate,
with symptoms comparable with a weight-bearing line over or
medial to the great toe, inward bowing of the tendo achillis,
or pain on manipulation and use of the feet.
2. The symptoms and manifestations of the veteran's service
connected bilateral second degree pes planus do not include
symptoms of pronounced flatfoot, with manifestations
comparable with marked pronation, extreme tenderness of
plantar surfaces, marked inward displacement and severe spasm
of the tendo achillis on manipulation, not improved by
orthopedic shoes or appliances; or severe flatfoot, with
symptoms comparable with objective evidence of marked
deformity, pain on manipulation and use accentuated,
indication of swelling on use, or characteristic callosities.
CONCLUSION OF LAW
A disability rating of more than 10 percent is not warranted.
38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.71a, Diagnostic
Code 5276 (1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Factual Background
The Board has carefully reviewed the entire record in this
case.
Medical records that provide information regarding the
current symptoms and manifestations of the veteran's service-
connected pes planus include the report of a March 1990 VA
examination of the veteran's feet. The examiner identified a
"mild" flat foot deformity bilaterally, as well as
degenerative joint disease of both feet.
Of record is a report from J.E.W., Jr., M.D. to D.H., M.D.
dated in March 1992. Dr. W. noted that the veteran had
complained of increasing bilateral foot pain over the
previous five years, as well as parasthesias involving the
plantar surfaces of both feet. A history of arthritis was
noted. Based on electromyography studies, Dr. W. concluded
the veteran suffered from peripheral neuropathy of
undetermined origin, moderate in degree. The veteran's
service-connected pes planus was not mentioned.
Also of record is a December 1993 report of M.E.W., M.D, to
Dr. H. The veteran, then age 80, complained of increasing
bilateral foot pain since 1986. A history of flat feet since
birth was noted. After conducting testing, Dr. W. gave an
impression of chronic peripheral neuropathy. Dr. W. did not
ascribe any of the veteran's foot problems to pes planus. A
1997 March report from Dr. W to Dr. H. noted that the veteran
continued to complain of increasing bilateral foot pain. Dr.
W. again diagnosed persistent chronic polyneuropathy
(peripheral neuropathy) with axonal and demyelinating
features. Pes planus was not mentioned.
A March 1994 VA examination report revealed the veteran
walked slowly with a cane, and wore orthopedic shoes.
Bilateral flattening of the longitudinal arch was
characterized by the examiner at 3+ or moderate. No
deformity of the great right toe was noted, but the veteran
could not stand on his toes or on his heels. The examiner
attributed that to other problems. No callosities were
noted. X-rays were obtained, and the relevant diagnosis was
moderate bilateral pes planus.
A March 1994 record from Dr. H reported the veteran's
complaints of foot and ankle pain, worse on the right. The
diagnosis was severe arthritis, rule out gout. In July 1994
the veteran was again seen by Dr. H for a check-up on his
feet. The relevant diagnoses were osteoarthritis and gout.
A May 1995 record from Dr. H reflected the diagnoses of
osteoarthritis and gout.
A number of VA outpatient treatment records have been
associated with the veteran's claims folder. A May 1997 VA
medical record referred to continued complaints of pain in
legs and feet. Upon examination, there was decreased
sensation to touch at the medial right leg and great toe.
Upon examination in March 1998 the diagnostic impression was
peripheral neuropathy and right lower extremity weakness. In
June and September 1998, the assessment was degenerative
joint disease of the feet. In November 1998 the relevant
diagnostic impressions were degenerative joint disease and
gouty arthritis.
In response to the remands of the Court and the Board in
December 1997 and June 1998 respectively, a VA Compensation
and Pension Examination was conducted in January 1999. The
examination report indicated that the veteran, age 85, came
to the examination in a wheelchair, complaining bitterly of
his foot pain. The veteran was wearing orthopedic shoes.
When he stood, the veteran had flattening of the longitudinal
arch. No callosities and no bunions were seen. The veteran
had some pronation of the feet, no particular tenderness in
the plantar surfaces although he complained of pain in the
dorsum of the feet, and there was some displacement of the
Achilles tendon on manipulation. There was no objective
evidence of marked deformity, and there was no pain on
manipulation. The veteran had 10 degrees dorsiflexion and
42 degrees of plantar flexion in both feet and a normal
amount of eversion and inversion. The examiner concluded
that the veteran's foot condition probably caused more
fatigability than he would normally have, but there was no
noticeable lack of coordination. X-rays showed bilateral pes
planus and small plantar spurs. The diagnosis was pes
planus, "rather severe".
In February 1999 the claims folder was returned to the
examiner for clarification of the examination report, in
light of the specific information required by the joint
motion for remand and the Board's remand. The revised report
indicated the veteran is in a wheelchair because of foot
pain, which pain the examiner attributed to gouty arthritis
of the feet. The examiner added:
I do not think that the patient's
flatfoot condition has anything to do
with the pain that he is having. He is
not on his feet a great deal. There is
no marked pronation. There is no extreme
tenderness of the plantar surfaces.
There are no callosities as was
previously reported. He does have
orthopedic inserts in his shoes. He does
not have marked deformity. He does not
have any inward bowing of tendon
achille's or pain on manipulation of the
foot except that which is caused by his
gouty arthritis. The pain that this
patient has is only dorsal surface of his
feet and not the [plantar] surface. The
patient does not have disability due
solely to his service connected bilateral
pes planus. The service connected pes
planus in the opinion of this examiner
does not cause a weakened condition,
excess fatigability, or incoordination in
this elderly, over eighty year old
gentleman. The patient's disabilities
primarily in the opinion of this examiner
are caused by the pain from his gouty
condition and not from his pes planus.
In March 1999, the RO issued a Supplemental Statement of the
Case which continued to deny the veteran's claim of
entitlement to an increased disability rating for bilateral
pes planus. The RO discussed the recent VA examination
report. The Supplemental Statement of the Case was sent to
the veteran and his attorney under cover letter dated march
19, 1999. The veteran and his attorney were invited by the
RO to submit comments. No response was received.
Relevant Law and Regulations
VA has adopted a schedule of ratings of reductions in earning
capacity from specific injuries. 38 C.F.R. Part 4. The
ratings shall be based, as far as practicable, upon the
average impairment of earning capacity resulting from such
injuries in civil occupations. 38 U.S.C.A. § 1155.
The rating schedule provides a 50 percent rating for acquired
bilateral flatfoot that is pronounced, with symptoms
comparable with marked pronation, extreme tenderness of
plantar surfaces, marked inward displacement and severe spasm
of the tendo achillis on manipulation, not improved by
orthopedic shoes or appliances; a 30 percent rating for
severe flatfoot, with symptoms comparable with objective
evidence of marked deformity (pronation, abduction, etc.),
pain on manipulation and use accentuated, indication of
swelling on use, or characteristic callosities; and a 10
percent rating is warranted when the veteran exhibits a
disability characterized as moderate, with symptoms
comparable with weight-bearing line over or medial to the
great toe, inward bowing of the tendo achillis, pain on
manipulation and use of the feet. 38 C.F.R. § 4.71a,
Diagnostic Code 5276.
Words such as "moderate" are not specifically defined in the
VA Schedule for Rating Disabilities. Rather than applying a
mechanical formula, the Board must evaluate all of the
evidence to the end that its decisions are "equitable and
just". 38 C.F.R. 4.6 (1998).
It is the Board's responsibility to weigh the evidence. When
there is an approximate balance of positive and negative
evidence regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given to the claimant. 38
U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. In Gilbert v.
Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court
of Veterans Appeals stated that "a veteran need only
demonstrate that there is an "approximate balance of
positive and negative evidence' in order to prevail." To
deny a claim on its merits, the evidence must preponderate
against the claim. Alemany v. Brown, 9 Vet. App. 518, 519
(1996), citing Gilbert, 1 Vet. App. at 54.
Analysis
A claim for an increased rating is regarded as a new claim
and is subject to the well-groundedness requirement of 38
U.S.C.A. § 5107(a) (West 1991). In order to present a well
grounded claim for an increased rating of a service-
connected disability, a veteran need only submit his or her
competent testimony that symptoms, reasonably construed as
related to the service-connected disability, have increased
in severity since the last evaluation. See Proscelle v.
Derwinski, 2 Vet. App. 629, 631-2 (1992); see also Jones v.
Brown, 7 Vet. App. 134 (1994). The veteran has stated that
the symptoms of his service-connected pes planus disability
have increased. The Board believes that the veteran's claim
is well-grounded.
As indicated in the Introduction, the Board believes that the
statutory duty to assist the veteran in the development of
his claim has been satisfied. The Board finds that the
directives in the December 1997 joint motion for remand, as
adopted by the Court, and the instructions its June 1988
remand have been complied with. See Stegall v. West, 11 Vet.
App. 268 (1998). Indeed, the RO sought clarification of the
initial January 1999 examination report from the examining
physician in order to elicit the information required by the
joint motion and the Board's remand.
The Board has carefully considered the evidence of record
regarding the current level of disability attributable to the
veteran's pes planus. The general tenor of the medical
evidence of record is that the veteran indeed has pes planus.
However, the increasing pain and other problems which the
veteran ascribes to his service-connected pes planus have
been attributed by a number of physicians, including the
veteran's own physicians, to non service-connected causes,
namely osteoarthritis, gout and/or peripheral neuropathy.
Little if any of the veteran's reported foot problems have
been linked by competent medical evidence to his pes planus.
In particular, the Board places great weight on the 1999 VA
examination report, in particular the examiner's comments
quoted verbatim above. In essence, the VA examiner
discounted the veteran's pes planus as a significant source
of his bilateral foot problems. The Board believes that this
report is entitled to great weight for a number of reasons:
The opinion specifically address the matter on appeal; it was
generated in response to the joint motion for remand; and it
is consistent with the other recent medical evidence of
record, including private medical reports, which indicate
that the veteran's increasing foot problems are not due to
his long-standing pes planus but to other, non service
connected disabilities.
In essence, the only evidence which links the recent foot
symptoms such as pain to the service-connected pes planus are
statements made by the veteran himself. However, it is well
settled that lay persons are not competent to offer medical
opinions. See Espiritu v. Derwinski, 2 Vet. App. 492, 494
(1992). Accordingly, although the Board has no reason to
doubt the veteran's descriptions of his foot pain, the Board
places no weight on the veteran's comments concerning his pes
planus as the source of such pain.
Among the evidence of record, there is a characterization of
the veteran's pes planus in the January 1999 VA examination
report as "rather severe." It should be noted that use of
terminology such as "severe" by VA examiners, although
evidence to be considered by the Board, is not dispositive of
an issue. All evidence must be evaluated in arriving at a
decision regarding an increased rating. 38 U.S.C.A. § 7104
(West 1991); 38 C.F.R. §§ 4.2, 4.6 (1998). There is other
evidence of record to the effect that the pes planus is not
severe, such as the March 1990 VA examination report, which
characterized the disability as "mild".
Moreover, and more significantly, the January 1999
examination report was later amended to separate the symptoms
and manifestations of the veteran's pes planus from his
nonservice-connected gouty arthritis, and the conclusion of
the examiner was then revised to indicate the symptoms of
which the veteran complained primarily were attributed to non
service-connected disability. Accordingly, the Board assigns
little probative value to the January 1999 description of the
veteran's pes planus as "rather severe", as such assessment
was in effect subsequently rescinded by the same examiner.
With respect to the schedular criteria found in Diagnostic
Code 5276, there is no medical evidence of marked deformity
of the veteran's feet due to pes planus. There is no medical
evidence of accentuated pain on manipulation and use. In the
many treatment records for lower extremity problems,
including the veteran's nonservice-connected knee problems,
there is no indication of swelling on use or characteristic
callosities. Those items enumerated above are the criteria
that must be met for the next higher rating, 30 percent, to
be warranted. In addition, elements of the rating criteria
for a 50 percent rating are not exhibited in the medical
record. For example, there is no medical evidence of marked
pronation, extreme tenderness of the plantar surfaces due to
pes planus, marked inward displacement and severe spasm of
the tendo achillis on manipulation.
The veteran has complained of pain in his feet since
approximately 1986, including at his most recent VA
examination in January 1999. His complaints of foot pain
were attributed in the 1999 examination report to disability
other than the his service-connected bilateral pes planus.
This conclusion was consistent with the other medical
evidence of record, including reports of the veteran's
private physicians, which has focused on peripheral
neuropathy and arthritis and did not emphasize pes planus as
a source of the veteran's recent foot problems. The 1999 VA
examiner, moreover, did not suggest that the service-
connected pes planus disability caused or aggravated the non
service-connected disabilities, and there is no other
evidence to that effect in the record.
The Board has considered the veteran's complaints of pain in
light of the applicable regulations that address functional
loss of the joints due to pain, 38 C.F.R. §§ 4.40, 4.45. The
medical evidence, most significantly the 199 VA examination
report, attributes any such reported problem to other causes,
specifically mentioning the veteran's advanced age. Based on
this evidence, the Board concludes that the veteran suffers
no additional functional loss due to his pes planus beyond
that represented by the 10 percent rating currently in
effect.
Extraschedular Rating
In the March 1999 Supplemental Statement of the Case, the RO
considered whether an extraschedular rating pursuant to
38 C.F.R. § 3.321(b) is warranted in this case, but concluded
it was not. The Board will, accordingly, consider the
provisions of 38 C.F.R. § 3.321(b)(1) 1998).
The Court has held that the question of an extraschedular
rating is a component of the veteran's claim for an increased
rating. See Bagwell v. Brown, 9 Vet. App. 157 (1996).
Bagwell stands for the proposition that the Board may deny
extraschedular ratings, provided that adequate reasons and
bases are articulated. See also VAOPGCPREC 6-96 (finding that
the Board may deny extraschedular ratings, provided that the
RO has fully adjudicated the issue and followed appropriate
appellate procedure). Bagwell left intact, however, a prior
holding in Floyd v. Brown, 9 Vet. App. 88, 95 (1996) which
found that when an extraschedular grant may be in order, that
issue must be referred to those "officials who possess the
delegated authority to assign such a rating in the first
instance," pursuant to 38 C.F.R. § 3.321 (1998). As noted
above, the RO has addressed the matter of the assignment of
an extraschedular rating. The Board will, accordingly,
consider the provisions of 38 C.F.R. § 3.321(b)(1).
Ordinarily, the VA Schedule for Rating Disabilities will
apply unless there are exceptional or unusual factors which
would render application of the schedule impractical. See
Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to
the regulation, an extraschedular disability rating is
warranted upon a finding that "the case presents such an
exceptional or unusual disability picture with such related
factors as marked interference with employment or frequent
periods of hospitalization that would render impractical the
application of the regular schedular standards." 38 C.F.R. §
3.321(b)(1) (1998).
The veteran has not identified any factors which may be
considered to be exceptional or unusual, and the Board has
been similarly unsuccessful. "An exceptional case includes
such factors as marked interference with employment or
frequent periods of hospitalization as to render
impracticable the application of the regular schedular
standards." Fanning v. Brown, 4 Vet. App. 225, 229 (1993).
The evidence does not show that the veteran's service-
connected pes planus presents such an exceptional or unusual
disability picture as to render impractical the application
of the regular schedular standards so as to warrant the
assignment of an extraschedular rating under 38 C.F.R.
3.321(b)(1). Although the veteran has claimed that he
experiences excruciating pain due to his disability, the
medical evidence discussed above attributes such complaints
to other causes. The evidence fails to show that the
service-connected pes planus has produced marked interference
with employment. The Board observes that the veteran is 85
years of age and evidently has not worked for a number of
years. The record also does not demonstrate that the veteran
has required any recent hospitalization for his service-
connected pes planus disability. Accordingly, an
extraschedular evaluation is not warranted.
Due to the reasons and bases explained above, the Board finds
that the preponderance of the evidence is against the
veteran's claim. A rating of more than 10 percent for the
veteran's pes planus is not warranted. Accordingly, the
claim is denied.
ORDER
Entitlement to a disability rating in excess of 10 percent
for the veteran's service-connected bilateral pes planus is
not warranted. The appeal is denied.
Barry F. Bohan
Member, Board of Veterans' Appeals
See also the joint motion for remand, page 5, which makes it clear that the veteran was free
to submit
additional evidence and argument in support of his claim.